BY G. A. FINCH
To the uninitiated, the term “moral rights”, would at first blush (pun intended), seem to suggest having something to do with bad character, improper behavior or religious and philosophical subjects.
Actually it has to do with intellectual property rights of an author, artist, or creator beyond mere copyright interests.
Moral Rights is beginning to appear more often in employment agreement provisions pertaining to intellectual property rights. The employer usually seeks to obtain a waiver of the employee’s moral rights to works subject to copyright which works are made by the employee within the scope of employee’s employment or using employer’s resources or confidential information.
It is a European legal concept and not rooted in American jurisprudence, although similar and analogous concepts have been asserted or litigated in the United States from time to time. I believe burgeoning multinational corporations and global trade have facilitated the infiltration of moral rights provisions into American legal documents. The American version of moral rights became codified as the Visual Artists Rights Act of 1990 (VARA) pursuant to the mandates of the Berne Convention.
VARA provides that the author of visual art has the right:
A) to claim authorship of his work,
B) to prevent the use of his name as author of any visual art that he did not create,
C) to prevent any intentional distortion, mutilation or other modification of his work that would prejudice his honor or reputation,
D) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of the right.
Under VARA, only the author of the subject visual art has these rights whether or not the author owns the copyright. VARA does not provide moral rights for authors of literary or musical works.
Black’s Law Dictionary sets out the most succinct global definition of Moral Rights:
“Moral rights include rights of (1) attribution (also termed “paternity”): the right to be given credit and to claim credit for a work, and to deny credit if the work is changed; (2) integrity: the right to ensure that the work is not changed without the artist’s consent; (3) publication: the right not to reveal a work before its creator is satisfied with it; and (4) retraction: the right to renounce a work and withdraw it from sale or display…” Black’s Law Dictionary, p. 1030 (Eighth Edition, 2004).